Legal Issues Surrounding Public Health Emergencies

Inglesby T . A plague on your city: Observations from Top Off. Biodefense Q 2000;2:4 (reporting on confusion among Top Off participants about which agency was in charge of the exercise).

Id. (“The Governor's Emergency Epidemic Response Committee and the larger committee of community-wide decision-makers communicated mostly via conference calls. Almost all observers and participants reported that the process of decision-making by conference call was highly inefficient and led to indecision and significant delays in taking action.”)

Institute of Medicine. The future of public health. 1988, p. 48 (noting that “under the Constitution, the states are repositories of powers not specifically delegated to the federal government. They have the primary responsibility for the well-being—including the health—of their citizens.”)

Garrett L , Betrayal of trust: The collapse of global public health. 2000, p. 531 (citing Michael Osterholm arguing that “the degree to which any municipality was prepared for such an abomination [use of a biological weapon] would depend not on emergency personnel such as police, but on the strength of the city's basic public health infrastructure.”)

See, e.g., Gostin LO , Improving state law to prevent and treat infectious disease. 1998; Gostin LO , The law and the public's health: A study of infectious disease law in the United States. Columbia Law Rev 1999;99:59.

O'Toole T , Testimony at Hearing on Terrorism Preparedness before the House Subcommittee on National Security, Veterans Affairs, and International Relations, September 22, 1999 (noting that under the Nunn-Lugar-Domenici Domestic Preparedness Programs the focus to date has been “primarily on responses to terrorist attacks using conventional explosives or chemical weapons. Training exercises focused on chemical attacks or conventional explosions have appropriately targeted traditional ‘first-responders'—firefighters, emergency response technicians, law enforcement personnel, and the like. Few cities have considered or practiced responding to an attack that employs biological weapons.”)

Id. (“Unfortunately, the public health infrastructure in the US has been neglected for decades. In 1988, the Institute of Medicine wrote that ‘public health in the United States has been taken for granted’ and that ‘our current capabilities for effective public health actions are inadequate’ … In the ensuing decade [of the 1990s], the situation has only gotten worse.”) See also Garrett L. Betrayal of trust, supra note 4, pp. 266–480 (analyzing the plight of the American public health system).

See Hoffman R Norton JE . Lessons learned from a full-scale bioterrorism exercise. Emerg Infect Dis 2000;6 (noting that in the Top Off exercise “an executive order was issued quarantining all persons in metropolitan Denver in their homes. … However, quarantining two million persons is not simple. … [A] one-time, blanket quarantine order is unlikely to be successful and cannot be enforced unless … many … issues are addressed.”)

US Constitution, Article I, Section 8 (granting Congress the powers, among others, to raise and support armies, to make rules regulating the armed forces, and to maintain a navy).

O'Toole, Testimony, supra note 6 (“The outcome of a bioterrorist attack on US civilians would be an epidemic.”)

Institute of Medicine, supra note 3, p. 48.

This paper does not address the controversy over whether the threat of bioterrorism is exaggerated. For a discussion of this debate, see The invisible enemy. Economist, November 18, 2000 p. 93. However, improving deterrence is an objective that even skeptics of bioterrorism could support.

For an example of the importance of the identification objective, see National Commission on Terrorism. Countering the changing threat of international terrorism. 2000, p 38 (recommending that the “president should direct the preparation of a manual on the implementation of existing legal authority necessary to address effectively a catastrophic terrorist threat or attack.”)

Hoffman and Norton, supra note 8 (Colorado state epidemiologists, reflecting on Top Off, recommending “that state health agencies review their statutory authority and evaluate whether these laws would be adequate to deal with the threats of bioterrorism and pandemic influenza.”)

National Commission on Terrorism, supra note 13, p 38 (recommending that the “president should determine whether any additional legal authority is needed to deal with catastrophic terrorism and make recommendations to Congress if necessary.”)

O'Toole, Testimony, supra note 6 (stressing the importance of coordination among the institutions involved in bioterrorism preparedness planning and response).